No. 95-1109
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
HAROLD D. MURDOCK, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
DREW S. DAYS, III
Solicitor General
LORETTA C. ARGRETT
Assistant Attorney General
ROBERT E. LINDSAY
ALAN HECHTKOPF
WILLIAM A. WHITLEDGE
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2217
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I
QUESTION PRESENTED
Whether Title III of the Organized Crime Control
Act of 1968 requires suppression, in a federal criminal
prosecution, of the contents of a telephone conver-
sation that a private party intercepted in violation of
Title 111 without the knowledge or participation of the
government.
(I)
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TABLE OF CONTENTS Page
Opinions below . . . . 1
Jurisdiction . . . . 1
Statement . . . . .2
Argument . . . . 4
Conclusion . . . .11
TABLE OF AUTHORITIES
Cases:
Burdeau v. McDowell, 256 U.S. 465 (1921) . . . . 6
Coolidge v. New Hampshire, 403 U. S. 443 (1971 ).... 6
Forsyth v. Barr, 19 F.3d 1527 (5th Cir.), cert.
denied. l15 S. Ct. 195 (1994) . . . . 9
Gelbard v. United States, 408 U. S. 41(1972) . . . . 4, 6, 7, 9
Scott v. United States, 436 U.S. 128(1978) . . . . 5, 6, 10
United States v. Chavez, 416 U. S. 562 (1974) . . . . 6, 8
United States v.. Donovan, 429 U. S. 413 (1977) . . . . 6, 8
United States v. Echavarria-Olarte, 904 F.2d 1391
(9th Cir. 1990) . . . . 9
United States v. Giordino, 416 U. S. 505(1974) . . . . 6, 8
United States v. Jacobsen, 466 U. S. 109 (1984) . . . . 6
United States v. Vest, 813 F.2d 477 (lst Cir.)
1987) . . . . 4, 8, 9, 10
Walder v. United States, 347 U. S. 62 (1954) . . . . 7, 9
Constitution and statutes:
U.S. Const. Amend. IV . . . . 5, 10
Electronic Communications Privacy Act of 1986,
Pub. L. No. 99-508, 100 Stat. 1848 . . . . 3
Omnibus Crime Control and Safe Streets Act of 1968,
Tit. III, 18 U.S.C. 2510 et seq.:
18 U.S.C. 2510(4) . . . . 3
18 U.S.C. 2510(5) . . . . 3
18 U.S.C. 2511 . . . . 5
18 U.S.C. 2515 . . . . 3, 4, 5, 6, 7, 8, 9, 10
18 U.S.C. 2518(l)(b)(iv) . . . . 8
(III)
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IV
Statutes-Continued: Page
18 U.S.C. 2518(8)(d] . . . . 8
18 U .S.C. 2520 . . . . 5
26 U.S.C. 7201 . . . . 2
Miscellaneous:
S. Rep. No. 1097, 90th Cong., 2d Sess. (1968) . . . . 5, 7, 9-10
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In the Supreme Court of the United States
OCTOBER TERM, 1995
No. 95-1109
HAROLD D. MURDOCK, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-33)
is reported at 63 F.3d 1391. The district court's order
of August 3, 1993, denying the motion to dismiss the
indictment and suppress evidence (Pet. App. 42-43)
and its memorandum opinion and order of January 4,
1994, denying the motion for rehearing (Pet. App. 44-
55) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on
August 23, 1995. A petition for rehearing en bane was
denied on October 6, 1995. Pet. App. 56. T-he petition
for a writ of certiorari was filed on January 4, 1996.
(1)
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2
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATEMENT
Following a conditional plea of guilty, petitioner
was convicted in the United States District Court for
the Eastern District of Michigan of attempted income
tax evasion, in violation of 26 U.S.C. 7201. The dis-
trict court sentenced petitioner to a term of imprison-
ment of one year and one day. The court of appeals
affirmed. Pet. App. 1-33.
1. In 1985, petitioner and his wife were separated,
but they continued jointly to operate a funeral home
business. The couple's marital difficulties prompted
petitioner's wife to record petitioner's telephone calls
on the funeral home's telephone line. She did so by
connecting a tape recorder to an extension telephone
in her residence, which was located next to the
funeral home. Petitioner's wife accumulated two shoe
boxes of tapes containing her husband's telephone
conversations. A story in the local newspaper led her
to believe that one conversation that she had taped
contained evidence that her husband, who was
President of the Detroit, Michigan, school board, had
accepted bribes from a contractor who supplied milk
to the school system. Anonymously, she mailed a
copy of that taped conversation to the losing bidder,
which provided the conversations to the local prose-
cuting attorney and to a newspaper. The newspaper
printed an article outlining the bribery scheme. That
story led federal agents to initiate a criminal inves-
tigation of petitioner, which culminated in an indict-
ment for income tax evasion, based on the fact that
petitioner had not reported a $90,000 bribe as income
on his tax return. Pet. App. 2-3.
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3
The district court denied petitioner's motion to
dismiss the indictment or to suppress the contents of
the taped conversation under 18 U.S.C. 2515 of Title
III of the Omnibus Crime Control and Safe Streets
Act of 1962.* Pet. App. 42-43. While Section 2515 bars
the evidentiary use of communications intercepted in
violation of Title III, the court concluded that the
taping of conversations over an extension phone does
not constitute an illegal interception under 18 U.S.C.
2510(4) and (5). Pet. App. 41-49. As an alternative
basis for its decision, the court held that suppression
was not an appropriate remedy for the alleged viola-
tion under Section 2515, because government agents
had not taken part in the interception, and because
"[n]o deterrent effect is served by punishing the gov-
ernment for the alleged wrongdoings of [petitioner's
wife]." Pet. App. 51.
2. The court of appeals affirmed. Pet. App. 1-33. It
held, first, that petitioner's wife had violated Title III
by taping petitioner's conversations. Id. at 6-22. The
use of a recording device attached to an extension
telephone to monitor petitioner's telephone calls con-
stituted an "interception," the court stated, and did
not fall within the "telephone extension exemption"
provided by 18 U.S.C. 2510(4) and (5). Pet. App. 6-22.
The court of appeals held, however, that suppres-
sion was not an appropriate remedy for the violation
in this case. The court explained that, while 18
U.S.C. 2515 provides for the exclusion from evidence
of illegally intercepted communications, that remedy
does not apply where the communication is offered
into evidence by an entity, such as the government in
___________________(footnotes)
* Title III was amended by the Electronic Communications
Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848.
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this case, that did not participate in the interception.
Pet. App. 29. Moreover, the court noted, because the
government was not involved in the illegal intercep-
tion, suppression of the intercepted conversation
would not deter violations of the statute. Id. at 28-29.
The court acknowledged that its holding that
Section 2515 is subject to a "clean hands" exception
conflicts with the First Circuit's holding in United
States v. Vest, 813 F.2d 477 (1987), that suppression of
all illegally intercepted communications is required
under Section 2515, without regard to whether the
proponent of the evidence was a party to the illegal
interception, in order to vindicate the privacy rights
of the victim of the interception. Pet. App. 22-32. The
court of appeals stated that the First Circuit had
erred in Vest in interpreting Gel bard v. United
States, 408 U. S." 41, 47-52 (1972), to require the sup-
pression of all illegally intercepted wire or oral com-
munications. Pet. App. .23-24. The court of appeals
noted that, because Gelbard involved a claim that the
government had conducted an illegal wiretap and was
attempting to use the fruits of that wiretap in a grand
jury investigation, the decision in that case did not
mandate suppression of evidence offered by parties
who did not participate in the unlawful interception.
Id. at 24-25.
ARGUMENT
Petitioner claims (Pet, 8-9) that review is war-
ranted to resolve the conflict between the decision
below and United States v. Vest, 813 F.2d 477 (1st Cir.
1987), with regard to the question whether 18 U.S.C.
2515 requires the suppression of an illegally inter-
cepted communication that is offered by a party who
did not participate in the interception. The court of
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5
appeals correctly held that suppression is not
required under those circumstances. While peti-
tioner is correct that the decision below conflicts
with the decision in Vest, review is not warranted; be-
cause the question presented has arisen so infre-
quently that its resolution would appear at this time
to be of little importance to the administration of
justice.
1. Section 2515 provides that:
Whenever any wire or oral communication has
been intercepted, no part of the contents of such
communication and no evidence derived therefrom
may be received in evidence in any trial, hearing,
or other proceeding * * * if the disclosure of that
information would be in violation of this chapter.
18 U.S.C. 2515. Read literally, Section 2515 would
preclude the receipt in evidence of illegally obtained
wiretap evidence for any purpose, including in a
prosecution of a defendant under 18 U.S.C. 2511 for
illegally intercepting communications, and in a civil
action for damages under 18 U.S.C. 2520 arising from
such an illegal interception. To avoid such results,
this Court has instead held, based on the legislative
history of Section 2515, that the suppression pro-
vision "was not intended `generally to press the scope
of the suppression role beyond present search and
seizure law'" under the Fourth Amendment. See
Scott v. United States, 436 US. 128, 139 (1978)
(quoting S. Rep. No. 1097, 90th Cong., 2d Sess. 96
(1968)).
Under Fourth Amendment doctrine, it is well es-
tablished that the exclusionary rule does not require
suppression of evidence that falls into the govern-
ment's hands following a private search and seizure.
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United States v. Jacobsen, 466 U.S. 109, 113-118
(1984); Coolidge v. New Hampshire, 403 U.S. 443,488
(1971); Burdeau V. McDowell 256 U.S. 465 (1921).
That is because "[t]he exclusionary rules were fash-
ioned `to prevent, not to repair,' and their target is
official misconduct." Coolidge, 403 U.S. at 488. In
this case, the government played no part in the illegal
interception by petitioner's wife of his telephone calls
but instead learned of the substance of that intercep-
tion after it had occurred. Accordingly, the exclu-
sionary rule's goal of deterring unlawful conduct
would not be advanced by barring the government
from offering that evidence at trial.
In every case in which the application of Title III's
exclusionary provision has been at issue, this Court
has inquired whether the statute's legislative history
supports that remedy. See Scott, 436 U.S. at 139;
United States v. Donovan, 429 U.S. 413, 437-439
(1977); United States v. Chavez, 416 U.S. 562, 578
(1974); United States v. Giordano, 416 U.S. 505, 516-
521 (1974); Gelbard v. United States, 408 U.S. 41
(1972). As the court of appeals recognized (Pet. App.
29), the legislative history of Title 111 supports the
view that Section 2515 does not mandate the suppres-
sion of intercepted communications when offered by a
party with "clean hands." As the Court has noted, the
purpose of Title III is to protect privacy by regulating
wiretapping and electronic surveillance. Gelbard, 408
U.S. at 47. The statute seeks to attain that objective
by prohibiting certain types of wiretaps and elec-
tronic surveillance, by providing the victim of an
unlawful interception a right to pursue money dam-
ages against the interceptor and by, in Section 2515,
requiring the courts to exclude from evidence ille-
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7
gaily intercepted communications or the fruits of
such communications.
The legislative history relating to Section 2515
makes clear that that provision was designed to deter
violations of Title III. The Senate Report accompany-
ing Title 111 (S. Rep. No. 1097, 90th Cong., 2d Sess. 96
(1968), explains that the overarching function of
Section 2515 is to "compel compliance with the other
prohibitions of the chapter." To achieve that goal, the
Report states, "[t]he perpetrator must be denied the
fruits of his unlawful actions in civil and criminal
proceedings." S. Rep. No. 1097 at 69 (emphasis added)
(quoted at Gelbard, 408 U.S. at 50). The Report adds
that Section 2515 "largely reflects existing law," and
that Congress did not intend "generally to press the
scope of the suppression r[u]le beyond present search
and seizure law. See Walder v. United States, 347
U.S. 62 (1954)." S. Rep. No. 1097, supra, `at 96.
Depriving the government of the opportunity to
offer the probative evidence of petitioner's guilt con-
tained on the tape-recordings at issue in this case
would not further Section 2515's deterrent purpose,
because the government did nothing to bring about
the illegal tape-recording. The "perpetrator" of the
illegal recording was, instead, petitioner's wife, who
recorded the calls on the business extension as a
result of her suspicions of petitioner's marital infi-
delities. The government was not complicit in
undertaking the interception; on the contrary, the
government did not learn of the bribery scheme that
was reflected on the tape-recordings from petitioner's
wife, but from a newspaper article. Suppression in
this case would therefore be contrary to this Court's
teaching that Title III's suppression sanction should
be limited to violations of those statutory require-
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8
ments that "directly and substantially implement the
congressional intent[ ]" in enacting the legislation.
See Donovan, 429 U.S. at 433-434 (suppression not
required where government failed to comply with
identification requirements of 18 U.S.C. 2518(l)(b)(iv)
and notice requirement of 18 U.S.C. 2518(8)(d));
Chavez, 416 U.S. at 577-578 (suppression not required
when government misidentified authorizing official);
Giordano, 416 U.S. at 527.
2. In Vest, the First Circuit reached the opposite
result, holding that Congress's concern for the pri-
vacy interests of the victim of an illegal wiretap,
which this Court noted in Gelbard, required the
suppression of illegally intercepted communications
whether or not the party offering such evidence had
illegally procured it. 813 F.2d at 481. The First
Circuit explained that "[t]he impact of this second
invasion [of privacy] is not lessened by the circum-
stance that the disclosing party (here, the govern-
ment) is merely the innocent recipient of a commu-
nication illegally intercepted by the guilty inter-
ceptor." Ibid.
In our view, the First Circuit erred in interpreting
this Court's decision in Gelbard as making the
privacy interests of the victim the sole determinant of
the scope of the Section 2515 suppression remedy. At
issue in Gelbard was a claim by a grand jury witness
that the government had engaged in illegal wire-
tapping and electronic surveillance and that such
surveillance would form the basis of his anticipated
questioning before the grand jury. Gelbard held that
if such evidence had been unlawfully intercepted by
the government, it should be suppressed. In so
holding, the Court noted, in part, that Section 2515
serves "as an evidentiary sanction to compel com-
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9
pliance with the other provisions of" Title III, 408
U.S. at 50 n.9, quoting S. Rep, No. 1097, supra, at 96;
`and that suppression avoided entangling "the courts
in the illegal acts of government agents." 408 U.S. at
51. The Court did not indicate that suppression would
invariably be required where a violation of Title III
had occurred, or where suppression would not serve
the interest of deterring misconduct.
As the court of appeals in this case noted (Pet. App.
25) in explaining its disagreement with Vest,
[t]he point of Gelbard was that if the government
was eventually shown to have illegally intercepted
the conversations, then the witness was entitled
under Title 111 to have that evidence suppressed
and completely excluded from any line of question-
ing in any proceeding, including a grand jury
proceeding. To cite Gel bard as standing for the
proposition that the entire purpose of Title III is
to prevent victimization in the form of invasion of
privacy goes too far.
Moreover, Vest is itself internally inconsistent, De-
spite its assertion that the victim's privacy interest
dictates that the illegally intercepted communica-
tions be suppressed, the First Circuit held in Vest
that such evidence could nonetheless be introduced
under Section 2515 for the purpose of impeaching the
victim's testimony. 813 F.2d at 484; see also Forsyth
v. Barr, 19 F.3d 1527, 1541 (5th Cir.) (illegally inter-
cepted information may be used for the purpose of
impeachment), cert. denied, 115 S. Ct. 195 (1994);
United States v. Echavarria-Olarte, 904 F.2d 1391,
1397 (9th Cir. 1990) (same). The First Circuit based
that holding on the fact that the Senate Report cites
Walder v. United States, 347 U.S. 62 (1954), see S.
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10
Rep. No. 1097, supra, at 96, which held that under the
Fourth Amendment, illegally obtained evidence may
be offered to impeach a defendant's contrary testi-
mony. In the sentence that immediately precedes the
citation to Walder, however, the Senate Report
states that Section 2515 was not intended "generally
to press the scope of the suppression r[u]le beyond
present search and seizure law." S. Rep. No. 1097,
supra, at 96. The Senate Report's citation to Walder
thus appears to have been illustrative, and not
exclusive of the search and seizure principles that
Title III intended to retain. Cf. Scott, 436 U.S. at 139.
There is no reason why the settled Fourth Amend-
ment principle that suppression is not required where
evidence that had been illegally obtained by a private
party falls into the government's hands should not
also be applied in the Title 111 context.
In any event, while the decision below conflicts
with the First Circuit's decision in Vest on the ques-
tion whether Section 2515 requires the exclusion of
illegally intercepted evidence when offered by an
entity who was not party to the interception, we do
not believe review of that question is warranted.
That question arises very infrequently. We are not
aware of any reported case that has addressed the
question between 1987, when Vest was decided, and
the date of the decision in the present case. There is
therefore no need for that issue to be addressed at
this time.
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CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
DREW S. DAYS, III
Solicitor General
LORETTA C. ARGRETT
Assistant Attorney General
ROBERT E. LINDSAY
ALAN HECHTKOPF
WILLIAM A. WHITLEDGE
Attorneys
April 1996